Neutral Citation Number: [2015] EWHC 2092 (Admin)
Case No: CO/3665/2014, CO/3667/2014, CO/3794/2014
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17/07/2015
Before :
LORD JUSTICE BEAN
and
MR JUSTICE COLLINS
------
Between :
THE QUEENon the application of
(1) DAVID DAVIS MP
(2) TOM WATSON MP
(3) PETER BRICE
(4) GEOFFREY LEWIS / Claimants
- v -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT / Defendant
-and -
OPEN RIGHTS GROUP
PRIVACY INTERNATIONAL
THE LAW SOCIETY OF ENGLAND AND WALES / Interveners
Dinah Rose QC, Ben Jaffey and Iain Steele (instructed by Liberty) for the Claimants Mr Davis and Mr Watson
Richard Drabble QC, Ramby de Mello, Azeem Suterwalla and James Dixon (instructed by Bhatia Best) for the Claimants Mr Brice and Mr Lewis
James Eadie QC, Daniel Beard QC and Sarah Ford (instructed by Government Legal Department) for the Defendant
Jessica Simor QC and Ravi Mehta (instructed by Deighton Pierce Glynn) for Open Rights Group and Privacy International, intervening by way of written submissions
Tom Hickman (instructed by Legal Services Department, the Law Society) for The Law Society of England and Wales, intervening by way of written submissions
Hearing dates : 4-5 June and 9 July 2015
------
Approved Judgment
Judgment Approved by the court for handing down. / Davis & Ors v SSHDLord Justice Bean :
This is the judgment of the court to which we have both contributed.
Judgment Approved by the court for handing down. / Davis & Ors v SSHD1. The claimants in three separately issued claims, which we heard together, apply for judicial review of the data retention powers in section 1 of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”). Mr Brice and Mr Lewis, the claimants for whom Mr Drabble QC appeared, are concerned about the width of the powers to retain and gain access to their data on a number of grounds, including (but not limited to) the confidentiality of communications with solicitors. Mr Davis and Mr Watson, who are joint claimants in case CO/3794/2014, do so as members of the House of Commons who share those general concerns but also in addition have particular concerns about the confidentiality of communications to and from constituents. Mr Davis is Conservative MP for Haltemprice and Howden; Mr Watson is Labour MP for West Bromwich East.
2. Permission to seek judicial review was initially refused on the papers by Blake J but was granted at an oral hearing by Lewis J on 8th December 2014. Lewis J also permitted Open Rights Group and Privacy International to submit an intervention by way of written submissions (on terms that the interveners would bear their own costs). We granted an application by the Law Society made shortly before the hearing to intervene by way of written submissions on the same basis.
3. The challenge is to the validity of s 1 of DRIPA and the Regulations made under it as being contrary to European Union law, as expounded in the decision of the Grand Chamber of the Court of Justice of the European Union (“the CJEU”) in Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others and the conjoined case of Kärntner Landesregierung, Michael Seitlinger, Christof Tschohl and others delivered on 8th April 2014 and reported at [2015] QB 127. We shall refer to this decision as “Digital Rights Ireland”.
4. At common law, Acts of the United Kingdom Parliament are not open to challenge in the courts. But the position under EU law is different. Decisions of the CJEU as to what EU law is are binding on the legislatures and courts of all Member States. The subtleties of the relationship between UK domestic courts and the European Court of Human Rights at Strasbourg arising, since 2000, from the duty under s 2(1) of the Human Rights Act 1998 to “take account” of the jurisprudence of that court, do not arise. The claimants (as a fallback to their EU law arguments) have pleaded an alternative claim for a declaration under s 4 of the HRA 1998 that s 1 of DRIPA is incompatible with their Convention rights; but this was scarcely mentioned in oral argument. Indeed, as will be seen later in this judgment, it was mainly counsel for the Home Secretary, not counsel for the claimants, who asked us to take account of the jurisprudence of the Strasbourg court in support of his arguments.
5. The present claims involve, as did Digital Rights Ireland, the CJEU’s interpretation of Articles 7 and 8 of the Charter of Fundamental Rights of the EU. Article 7 provides:
“Everyone has the right to respect for his or her private and family life, home and communications.”
Article 8 provides:
“1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.”
The first of these Articles is in identical terms to Article 8(1) of the ECHR, except that the word “correspondence” is replaced by “communications”. The second has no counterpart in the ECHR.
6. In Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) [2012] 1 WLR 3333 Lord Kerr of Tonaghmore JSC, with whom the other Justices of the Supreme Court agreed, said at paragraphs 27-28:-
“The Charter was given direct effect by the adoption of the Lisbon Treaty in December 2009 and the consequential changes to the founding treaties of the EU which then occurred. Article 6(1) of the Treaty on European Union (TEU) now provides:
"The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions."
Although the Charter thus has direct effect in national law, it only binds member states when they are implementing EU law - article 51(1). But the rubric, "implementing EU law" is to be interpreted broadly and, in effect, means whenever a member state is acting "within the material scope of EU law"…….Moreover, article 6(1) of TEU requires that the Charter must be interpreted with "due regard" to the explanations that it contains.”
7. The Secretary of State’s Detailed Grounds of Defence are thus correct in stating at paragraph 38 that “the test of validity of the Act [DRIPA] and the 2014 Regulations is whether they are compliant with Articles 7 and 8 of the EU Charter and/or Article 8 ECHR.” Data protection law has been within the scope of EU law for 20 years. The Data Protection Act 1998 was enacted to implement the Data Protection Directive (95/46/EC). The Explanations referred to in the Charter and printed in the Official Journal of the EU make it clear that Article 8 of the Charter was based on Article 286 of the Treaty establishing the European Community (as amended) and on the Data Retention Directive, among other sources. This is not a case in which any party has argued that Article 8 of the Charter lies outside the proper scope of EU law, although it will be seen that there is a dispute as to whether it covers access to data as well as retention.
8. Article 52(3) of the Charter provides:-
“In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
9. The Secretary of State prays in aid the first sentence; the Claimants the second. As to the second, Mr Eadie submitted that it does not entitle the CJEU (or this court) to hold that the scope of anyone’s rights has been extended by virtue of the Charter, since it was not intended to give fresh rights but to consolidate existing rights. This approach, he submitted, is confirmed by Protocol 30 to the EU Treaties, negotiated by the UK and Poland, which provides:-
“The Charter does not extend the ability of the Court of Justice, or any court or tribunal of Poland or of the UK, to find that the laws, regulations or administrative provisions or action of Poland or of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable for Poland or the UK except in so far as Poland or the UK has provided for such rights in the national law.” [Title IV is not relevant in this case]
10. The precise scope of Protocol 30 is far from clear, since it only precludes the extension by the CJEU or domestic courts of their existing powers to find that UK laws are not in accordance with the Charter. It cannot be used to prevent the court from defining the extent of rights contained in the Charter which set out provisions within the material scope of EU law.
11. The extent of the State’s powers to require the retention of communications data and to gain access to such retained data are matters of legitimate political controversy both in the UK and elsewhere. The Queen’s Speech opening the new Parliament on 27 May 2015 indicated that “new legislation will modernise the law on communications data”. To take one example from abroad, on 2 June 2015 the US Congress passed one statute (the USA FREEDOM Act) restricting the data retention powers previously conferred by another statute passed in 2001 (the USA PATRIOT Act). It is not our function to take sides in this continuing debate, nor to say whether in our opinion the powers conferred by DRIPA are excessive or not. We have to decide the comparatively dry question of whether or not they are compatible with EU law as expounded by the CJEU in Digital Rights Ireland.
12. On 11 June 2015, a few days after the main hearing before us had concluded, the Government published “A Question of Trust”, a 373-page report on the operation and regulation of investigatory powers by David Anderson QC, Independent Reviewer of Terrorism and Security Legislation. His report was rightly described by the Prime Minister in a statement to Parliament as thorough and comprehensive. We allowed the parties to make short written submissions to us about it.
Communications data
13. The phrase “communications data” does not include the content of a communication. Such data can be used to demonstrate who was communicating; when; from where; and with whom. They can include the time and duration of a communication, the number or email address of the originator and recipient, and sometimes the location of the device from which the communication was made. They do not include the content of any communication: for example the text of an email or a conversation on a telephone. Communications data comprise three broad categories:
(a) Subscriber data: information held or obtained by a communications service provider (CSP) in relation to a customer, for example their name, address and telephone number;
(b) Service data: information relating to the use made by any person of a communications service and for how long, for example, itemised telephone records showing the date, time and duration of calls and to what number each call was made; and
(c) Traffic data: data comprised in or attached to a communication by means of which it is being or may be transmitted, for example, who the user contacted, at what time the contact was made, the location of the person contacted and the location of the user.
14. Communications data are used by the intelligence and law enforcement agencies during investigations regarding national security and organised and serious crime. They enable investigators to identify members of a criminal network, place them in specific locations at given times and in certain cases to understand the criminality in which they are engaged. They can be used as evidence in court.
15. As the Home Secretary said in a statement to the House of Commons on 10 July 2014:
“Communications data has played a significant role in every Security Service counter-terrorism operation over the last decade. It has been used as evidence in 95 per cent of all serious organised crime cases handled by the Crown Prosecution Service. And it has played a significant role in the investigation of many of the most serious crimes in recent time, including the Oxford and Rochdale child grooming cases, the murder of Holly Wells and Jessica Chapman and the murder of Rhys Jones. It can prove or disprove alibis, it can identify associations between potential criminals, and it can tie suspects and victims to a crime scene.”